ORDERS:
ORDER AND DECISION
The Petitioner in this matter seeks the removal of the restrictions from her beer and wine
permit (AI 96777) and club sale and consumption license (AI 96778). These restrictions were
imposed by Hearing Officer Wendell O. Brown in March of 1994 and supplemented on June 6,
1994. A hearing was held on March 21, 1996.
FINDINGS OF FACT
1. Petitioner operates a nonprofit social club, d/b/a Underground located at 715
South Irby Street, Florence, South Carolina.
2. Petitioner seeks to have restrictions removed from her beer and wine permit (AI
96777) and club sale and consumption license (AI 96778). These restrictions were imposed by
Hearing Officer Wendell O. Brown in March 1994 and supplemented on June 6, 1994.
The restrictions are as follows:
a. The hours of operation of the place of business shall be from 9:00 p.m. on Friday, Saturday, and Sunday evening of each week until 2:00 a.m. the following morning and the establishment shall not be open for sale of beer, wine or liquor at any other hours;
b. There shall not be kept upon the premises any gaming devices, pinball machines, poker machines or any other similar machines or devices;
c. Parking shall be restricted to the parking available on the premises and upon other premises which the licensee has obtained valid permission and that no parking for members will be permitted in the Quincy's parking lot;
d. The parking lot and area around the premises shall be at all times kept properly cleaned and free of any trash, paper, bottles, cans or other debris; and
e. Albert Smith, formerly associated with "Smitty's", "Visions" or "Amvets", shall hold no office in or become a member of Brothers for Brothers or Illusions and shall have no financial interest in the same and shall not be permitted to be present upon the premises at any time it is open for business or in any manner be connected with or hold any membership in the organization.
3. The subject location is located within a commercial area directly off of a four lane
major thoroughfare leading into the city of Florence, South Carolina.
4. There are two protestants of record, Mike Tayara and Dewey Powers, III. Mr.
Tayara primarily raised concerns about removing the restriction pertaining to Albert Smith. Mr.
Powers expressed concerns that the removal of the restrictions would interfere with his insurance
business, which neighbors the subject location. First, he is concerned with the potential for fires,
as there has been an out-break of fires at the subject location on two occasions. Also, he believes
that unrestricted hours of operation create a greater likelihood for trouble. Finally, he is
concerned with litter and parking, as there has been an overflow of parking and litter on his
property. Other than the aforementioned concerns, the protestants have not experienced any
disturbances from the subject location. Mr. Power's insurance business is operated Monday
through Friday, 8:45 a.m. to 5:30 p.m.
5. According to testimony of the Petitioner, there are five other licensed
establishments located within a range of 25 feet to 75 feet operating without restrictions similar to
those imposed upon Petitioner.
6. The Petitioner stipulated that she would not open for business before 6:30 p.m. if
the hourly restrictions were removed from her permit and license.
7. Albert Smith has an extensive history of violations of the Alcoholic Beverage Act
during a short period of time while holding beer and wine permits and consumption licenses for
Smitty's, Illusions, Visions, and Amvets. See S.C. Department of Revenue and Taxation's letter
dated April 23, 1996 concerning Albert Smith.
CONCLUSIONS OF LAW AND DISCUSSION
The issue in this case is not the imposition of restrictions, but the removal of certain
restrictions on a beer and wine permit and sale and consumption license. This tribunal is
authorized to grant the issuance of a permit or license and is also authorized to place restrictions
or conditions on the permit or license. See S.C. Code Ann. §§ 61-9-320 and 61-5-50; Feldman
v. S.C. Tax Comm'n, 203 S.C. 49, 26 S.E.2d 22 (1943). It is, therefore, axiomatic that this
tribunal has the authority to remove such restrictions, if it has determined that doing so would not
adversely affect the public interest or be detrimental to the welfare of the inhabitants of the
community. See 48 C.J.S. Intoxicating Liquors § 121 (1981). Each of the aforementioned
restrictions will be addressed.
A. Hours of Operation. There are no other social clubs in the immediate area of the
Petitioners's organization by which to measure the equity of the restriction on the hours of
operation. Furthermore, and more importantly, Hearing Officer Wendell Brown's Order of March
1994, and as supplemented June 6, 1994, does not specify the rationale for this restriction other
than to state generally, "[t]hese hours seem reasonable to me and did protect the interest of the
other parties involved." The protestants in the present case did not articulate justifications for the
continued imposition of this restriction. Mr. Powers raised concerns over the increasing potential
for the out-break of fires the longer the business hours of the Petitioner's organization. However,
such an assertion is speculative.
B. Gaming Devices. Again, Hearing Officer Brown's Order, as amended, does not
specify the rationale for this restriction, nor did the protestants offer sufficient evidence to sustain
its imposition. This tribunal is well aware of S.C. Code Ann. § 61-9-410(3), which prohibits a
holder of a beer and wine permit from permitting gambling or games of chance on a licensed
premises. The Petitioner has not indicated to this tribunal that she intends to permit either of
these activities on the licensed premises. Therefore, this tribunal does not need to reach the issue
presented in S.C. Code Ann. § 61-9-410(3). Nonetheless, the Department of Revenue and
Taxation ("Department") is the regulatory agency charged with regulating and enforcing the Coin-Operated Machines and Devices Act, codified at S.C. Code Ann. § 12-21-2703, et seq., (Supp.
1995), the Video Game Machines Act, codified at S.C. Code Ann. § 12-21-2770, et seq. (Supp.
1995), and the Alcohol and Alcoholic Beverages Act, codified in Title 61 of the 1976 South
Carolina Code of Laws. As the agency with the affirmative duty for enforcing these acts, the
Department may refuse Petitioner licensure, if she applies, under the Coin-Operated Machines and
Devices Act or the Video Game Machines Act if it determines such to be antithetical to Title 61.
Furthermore, the Department may initiate an action against Petitioner if it ever deems Petitioner's
activity on the licensed premises to be violative of the law.
C. Parking/Parking Lot (Restrictions Nos. 3 and 4). It is evident from the testimony
of the protestants that members and patrons of Petitioner's organization park in neighboring lots
without authorization of the owners. As a result, Mr. Powers restricted access to his lot by means
of a chain strung across its entrance during nonbusiness hours. Mr. Powers has also experienced
trash in his lot after Petitioner's hours of operation, which he attributes to the operation of
Petitioner's organization.
D. Albert Smith. Mr. Smith has an extensive history of violations of the Alcoholic
Beverage Act during the time he held permits and licenses for various nonprofit organizations. In
Wall v. S.C. Alcoholic Beverage Control Comm'n, 269 S.C. 13, 235 S.E.2d 806 (1977), the court
stated that a person may be refused a liquor license for a violation of the liquor laws. It is,
therefore, implicit that a person who may be refused a permit or license under S.C. Code Ann. §§
61-5-50 and 61-9-320 may be precluded from participating as an agent or member in a licensed
nonprofit organization.
ORDER
For the foregoing reasons, the restrictions relating to the hours of operation (Restriction
#1) and gaming devices (Restriction #2) are lifted, while the others remain in effect as there was
sufficient evidence proffered in this proceeding that their removal would adversely affect the
public interest. As a condition for the removal of Restriction #1, Petitioner voluntarily agreed not
to open for business before 6:30 p.m. Pursuant to 23 S.C. Code. Regs. 7-88, the Department
shall impose this stipulation as a restriction on Petitioner's permit and license.
AND IT IS SO ORDERED.
_____________________________
JOHN D. GEATHERS
Administrative Law Judge
Edgar A. Brown Building
1205 Pendleton Street
Columbia, South Carolina 29201
May 7, 1996
Columbia, South Carolina |
